Categories
Miscellany

The Author as Adversary at Iowa Law Review

If there were a law professor named Frankenstein, what would his creation be?

Maybe Iowa Law Review.

Rather than treat me as a partner in publishing an article of mine back in 2020, the journal treated me as an adversary—just as students see others treated in the materials they study in law school—and has continued to do so over the past two years.

The journal threatened to publish my article without my consent because I was late turning in revisions. That caused me to submit a final draft that was rough at best.

When I later told the editor-in-chief what happened, the journal doubled down, telling me I was the only one at fault, refusing to update the article in the legal databases to a satisfactory version, and asking me to reach out to University counsel if I had any further questions.

The journal even told me it expects any article submitted to it to be ready for publication—the implication being that the journal can go to press with an author’s work whenever it wants.

Here is how events unfolded.

A few months after the pandemic hit, I found myself about twelve hours past deadline in returning final edits to Iowa Law Review. I had found a major flaw in the argument of my paper and didn’t know what to do.

Then I received this email from the managing editor: “we regrettably must move forward with publishing the piece with the previously edited version we sent.”

This is, of course, every author’s nightmare: that a journal will go to press without the author’s consent. Which is why most publication agreements have a clause like this one in the agreement I signed with Iowa Law Review: “The Work shall not be published by the Review unless the Author reviews and approves the Work.”

But this was also something more: the author as adversary rather than partner.

Authors and journals are natural partners, because their interests are aligned: both are on a mission to get quality scholarship into print. The editor—and, as I later learned to my dismay, the entire Iowa Law Review—had lost sight of that mission, transforming a partnership into an adversarial affair.

And transforming me—a law professor who teaches the adversarial process—into a kind of Frankenstein.

What I should have done was to remind the editor of both the publication agreement and the journal’s mission to publish quality work, and to ask that the article be bumped to the next volume—or, in a worst-case scenario, withdrawn so that I could resubmit it in the summer submissions cycle.

Instead, I panicked.

I’d already been up all night trying to get the draft into shape. All I could think about was how I would feel if my flawed draft wound up in print. It was supposed to be my tenure piece.

So, rather than do the right thing, I raced madly to complete my revisions and sent an updated draft to the journal about nine hours later.

The editor replied: “Although we have already spent the balance of the day conducting the final review of the earlier version, we will accept this updated copy.”

Yes, he was so confident of the journal’s right to publish without my consent that he thought he was doing me a favor by accepting my draft.

I had almost completely rewritten the paper. The blackline I sent showed that more than half (54%, to be precise) of the text was brand new. I also attached a folder containing twenty-six new sources.

Threats aside, that should have been a red flag for the editor.

The only way for an editor to handle these changes responsibly would have been to buy time to review them by bumping the piece to the next volume—or to rescind my publication offer.

Instead, the journal went to press, explaining that “the only thing we will have time to do is check Bluebook formatting one final time and make sure nothing is egregiously out of place above the line[.]”

Of course, you can’t rewrite half an article from scratch in a few days’ time and expect it to be anything but rough.

A month after the article appeared in print, I phoned the new editor-in-chief to ask if she might be willing to swap a revised, finished draft for the current one in the Heinonline, Westlaw, and Lexis databases.

I figured she might decline to make the switch, but I thought that, regardless, she would be horrified to hear that an editor had threatened to publish my work without consent—and that she would apologize.

Instead, she sent me what might best be described as a legal memo.

“I have located and reviewed all relevant communications between you and the Iowa Law Review,” it began. Over five single-spaced pages, the memo picked through nearly all of my email exchanges with the editors over the previous year, going back nearly to the date I accepted the journal’s publication offer.

The gist of the memo was: This is your fault because you missed our deadline.

I replied that it didn’t matter who was at fault. What mattered was that a rough draft of an article had wound up in print. Something had to be done about that.

“If you have any further requests, please direct them to our university legal counsel,” the editor replied.

I was floored, of course. But I also felt complicit in the way the students were treating me.

These weren’t my students. But I am a law professor and the adversarial process is a big part of the material that I teach. I couldn’t say that my students would not have drawn the same lessons from my classes about how to conduct business as these students seemed to have drawn from their two years of legal education.

I wrote to Iowa Law’s dean, Kevin Washburn. He did not reply.

Unsure what to do next, I consulted with a colleague, who suggested I phone the faculty advisor and propose the following: The journal publishes a straw reply to my article that points out that it looks incomplete; I publish a response that explains that due to a “hiccup” in the publication process an incomplete draft of the paper had wound up in print; I attach a revised draft to the response.

The journal agreed. I thought this meant the editors had understood that threatening to publish without consent is wrong—or at least that publishing rough drafts is bad for the journal. I soon discovered that the editors again thought that they were just doing me a favor.

The following spring, after the straw reply—which I had tapped my colleague Brian L. Frye to write—had been published, the journal’s new board decided that I wouldn’t be permitted to mention the “hiccup” in my response after all.

“[W]e do not feel comfortable including the ‘hiccup’ language as from our perspective there was no hiccup in the publication process,” wrote an editor.

No, not even a hiccup.

Did the new board really understand what had happened the previous year?

Yes, I was assured. The threat to publish work without consent didn’t matter, the new editor-in-chief explained via Zoom, because (in paraphrase): “we expect that, when you submit an article to us, it is ready for publication.”

That, of course, will be news to most authors submitting articles to Iowa Law Review, not to mention the 2Ls slaving away checking cites.

After nearly two months, the students offered to restore my original “hiccup” language.

But I was done with the reply-response fix.

The “hiccup” language was both a whitewash of the journal’s threat to publish without consent and a pact to mislead readers about the evolution of academic debate regarding the article. It was also unlikely that a reader would find the corrected draft attached to a response to a reply to the original article.

I wanted an acknowledgment that threatening to publish without consent is wrong—a betrayal both of an author and of the journal’s readers. And I wanted to renew my request that the journal substitute a revised draft in the databases. After placing a few phone calls, I learned that Heinonline, Lexis, and Westlaw all routinely substitute new drafts for published articles. All it takes is an email from the editors.

The journal again refused.

I can think of plenty of reasons why a journal might hesitate to substitute a revised draft.

It might confuse readers. (Solution: Append an editorial note.)

It would mess up citations to the original. (Solution: Add a decimal to the new page numbers, as in 1749.1.)

Everyone might want to do it. (Solution: Limit it to victims of threats to publish without their consent.)

There’s no one available to cite-check the revised version. (Solution: Find someone. Or don’t—54% of the version that is currently in print was not cite-checked either—but that didn’t prevent the journal from publishing it when it was expedient for the journal to do so.)

But even though I begged the journal for a reason, the only one I ever got was that, as the editor-in-chief put it, “[i]t has never been Iowa Law Review’s policy to replace a published piece with an updated or revised version.”

In other words: because.

To this day, there has been no resolution. The rough draft of my article is still available in all the legal databases—and displayed on Iowa Law Review’s website—without any warning to readers regarding the unsavory circumstances of its publication. And the journal has never acknowledged that what it did was wrong—or explained to me why it will not implement a quick and effective fix.

I do think that Iowa Law Review is a troubling reflection of the lessons students absorb in law school.

Fortunately, it is not the norm.

I have worked with eleven journals. Only Iowa Law Review has treated me as an adversary—across three successive boards.